Dealing with points of law and other technical issues 1 Introduction

The arbitrator has the power to appoint legal advisers and other experts to report to them, or to appoint assessors to sit with them to assist on technical matters, unless the parties agree otherwise.

The arbitrator is required to disclose any expert opinion obtained and allow the parties a reasonable opportunity to make representations, hear any oral expert opinion, and ask questions of the expert giving it. This is a default rule and the parties are free to modify or disapply it (see Rule 34 of the Act).

The fees and expenses of such persons appointed by the arbitrator are for the account of the arbitrator and will therefore need to be recovered from the parties as part of the expenses of the arbitration. The following are matters that the arbitrator should consider in that regard:

a) obtaining an estimate of what the expenses are likely to be (including the drafting of instructions, the fee for the advice itself, and any discussion concerning it), and how long it will take for the advice to be obtained, and giving the parties the opportunity to comment

b) informing the parties that the expenses of taking the legal advice will form part of the expenses of the arbitration for which they will both be liable in the first instance (that is to say, until liability for expenses is finally determined) on a several basis c) seeking an interim payment from the parties to cover the costs rather than waiting

13.2 Disputes involving issues of law

Although most rent review arbitrations involve only issues of valuation, some may raise one or more points of law, such as the interpretation of the rent review clause or the admissibility of evidence. When a point of law is raised, the arbitrator should require the party raising it to provide it in writing and to send a copy to the other party. The

arbitrator should then seek to agree with the parties (or, in the absence of agreement, determine) the exact nature of the point of law (including the formulation of the issue) and how it can best be resolved.

The following are the main possibilities:

The arbitrator may decide the legal issue after considering submissions from both parties. The decision could then either be given as a separate award on the preliminary point of law, or it could be incorporated into the substantive award on rent. The

arbitrator should raise with the parties the benefit that might be associated with making an alternative award, but should only then proceed to do so if the parties agree.

The parties may request the arbitrator to take legal advice on the issue (or the arbitrator may independently decide to do so) before making the award (see section 13.5).

The point may be decided by the court as a preliminary point of law (see section 13.6). The parties may agree after the dispute has arisen that no reasons shall be given for the award, in which event this will exclude the court’s jurisdiction with the result that the parties will then be bound by the arbitrator’s decision on the issue (Rule 69(2) of the Act).

13.3 Disputes involving other technical issues

The same analysis as in section 13.2 applies to any other facet of the arbitration that appears to require special expertise in its determination (e.g. the remaining life of M & E plant). Here, too, the arbitrator should follow one of the different ways of proceeding set out in section 13.2.

13.4 Procedure in relation to legal or technical issues

If an arbitrator intends to decide a legal or technical issue, they should consider whether a different approach is required in relation to the issue, compared with the case

management in relation to the arbitration as a whole (see section 8). In particular, the arbitrator will wish to consider with the parties whether:

a hearing will be required, or whether the issue will be determined on the basis of written reports/submissions alone

 statements of case will be required

 it would be appropriate to direct that facts should be agreed in relation to that issue

 disclosure is required in relation to that issue

 sequential exchange of evidence is appropriate

13.5 Using an expert

In straightforward cases, the arbitrator need do little more than set down the timetable for submissions and counter-submissions to be provided for the chosen expert. Following receipt of the expert’s advice on the point at issue, the arbitrator must disclose it to the parties for their comments (see Rule 34 of the Act). The arbitrator should consider any comments made by the parties (in conjunction as necessary with an expert). If there is any modification to the advice as a result of that process, the arbitrator may find it necessary to revert to the parties. At the end of that process, the arbitrator must decide whether to accept the advice.

In the more complicated cases, the arbitrator and the expert may need to meet to discuss a number of matters. The arbitrator may have a far greater understanding of the nature of the background problem, including a feel for the real difference between the parties, which will inform the thinking of the expert. Such matters may include the following:

 The issue: has this been correctly defined by the parties, or does it not cover the point that is really at issue?

 The evidence: is there sufficient material available for the expert to be able to decide the issue, or is further material (e.g. any agreement for lease; the planning status of the premises) needed?

 The submissions: do these reveal any deficiencies in the approach that has been taken that will require questions to be asked of the parties?

 The draft opinion: it will often be prudent for the expert to supply his or her opinion in draft to the arbitrator, and for them then to meet to discuss the views before the final version is issued.

13.6 Referral to court

As an alternative to the preliminary point being decided by the arbitrator, it may be decided by the court under Rule 41 of the Act.

Such an application is valid only if:

a) the parties have agreed that it may be made or

b) the tribunal has consented to it being made and the court is satisfied that: (i) determining the question is likely to produce substantial savings in

expenses,

(ii) the application was made without delay, and

(iii) there is a good reason why the question should be determined by the court.

Unless otherwise agreed by the parties, the arbitrator may continue the arbitration proceedings and make an award while an application to the court under Rule 41 is pending. It would obviously be wrong to do so if the remainder of the arbitration depends upon the outcome in relation to the preliminary issue.

13.7 The raising of legal issues as a means to delay

The arbitrator should bear in mind when a point of law is raised that this may merely be an attempt to delay matters. There should be no hesitation, therefore, in being robust in considering whether there is any merit in the point and in deciding whether to determine the point themselves, to seek legal advice, or to grant permission for a party to have the matter decided by the court. The arbitrator will wish to bear in mind that if they do decide the point themselves, and the parties accept it, much time and expense will have been saved. If either party does not accept the decision, their remedy is to seek leave to appeal the point under Rule 69 of the Act.

14 ‘Documents only’ arbitrations